Awww, Do I Have To: Donald Trump Edition

This past Friday, a Virginia delegate to next month’s GOP convention filed suit in a federal district court, arguing that he and other delegates bound by party rules to cast their first round ballots for one Donald J. Trump should be permitted to change their votes to someone (anyone!) else as their consciences dictate.

The plaintiff, Carroll Boston Correll, Jr. — totally awesome name, btdubs — is seeking class action status for the lawsuit, which would allow him to represent others in the same sticky situation. As the convention rules stand now, such free agent behavior is not allowed. However, as part of this same effort, also known as #DumpTrump, a number of delegates and others appalled by the prospect of an orange demagogue as their nominee or, heaven forbid, President of the United States of America, are pushing the 112-member rules committee to adopt a conscience clause allowing putatively bound delegates to become free agents.

Under the U.S. Constitution, states have the power to regulate the “time, manner, and place” of elections. However, political parties are not governmental entities and are by and large entitled to set their own rules for nominating a candidate. While popular elections have been the rule of the day for the past forty-or-so years, it wasn’t always thus. In fact, the proverbial smoke filled back room was really a thing. You want to nominate a candidate based on whose mustache is thickest? By all means.

The suit is based on Carroll’s allegation is based on criminal penalties available in Virginia for a delegate who does not vote according to the rules. This, Carroll says, is a violation of his and other delegates’ First Amendment rights. Government punishment for speaking falls squarely into First Amendment issue territory. A much murkier question is whether being forced to follow some party rules is a form of speech protected by the Constitution.

The record on challenges like these is vanishingly small, and so we’re in uncharted-ish territory. However, we will hopefully see a determination by the court soon, given that the convention is a few short weeks away. No matter who prevails, there will likely be an appeal that could go to the Supreme Court directly because of the urgent nature. How would they rule? Since the death of Antonin Scalia, the Court has been evenly split on ideological lines, with four liberals and four conservatives, even though Anthony Kennedy breaks with other conservatives fairly regularly. Remember, a 4-4 split merely affirms the lower court ruling without creating binding precedent. What that means is that this lowly district court judge may exercise awesome power when it comes to determining the next president. That said, if there aren’t enough rebel delegates to deprive Trump of a majority, it won’t matter much either way. Right now, the #DumpTrump movement would need an uprising by more than three hundred delegates to get there. Whether that’s made possible by a change in the rules or a court ruling favorable to Carroll, it by no means guarantees that such a large number of delegates will go rogue.